Laurens Walker

Preference for Modes of Dispute Resolution as a Function of Process and Decision Control.

Abstract Research on procedural justice has suggested that the distribution of control among participants can be used to classify dispute-resolution procedures and may be an important determinant of preference for such procedures. This experiment demonstrates that control can be meaningfully divided into two components: control over the presentation of evidence and control over the final decision. The experiment placed subjects (law students and undergraduates) in a situation of conflict and varied two between-subjects factors: (1) Role, whether subjects expected to role-play third parties (law students) or litigants (undergraduates), and (2) Orientation, whether individuals focused on equity claims (appeals to a norm of fairness) or legal claims (appeals to a strict, legal interpretation of events). As a control, a third-party neutral-orientation condition was included. In addition, subjects were presented with four dispute-resolution procedures which varied in third-party control over the presentation of evidence (Process Control) and third-party control over the final decision (Decision Control) as within-subjects factors. Results revealed that both litigants and third parties preferred high rather than low third-party decision control. Litigants with an equity orientation preferred low third-party control over the presentation of evidence, particularly when third parties had high rather than low decision control. Third parties and litigants with a legal orientation preferred low rather than high third-party process control only when there was high third-party decision control. Litigant preferences were more affected by variation in process control than variation in decision control while third-party preferences were more affected by variation in decision control than in process control. As a check on external validity, military judges given a neutral orientation were asked to evaluate and express preferences for the four dispute-resolution procedures. Their results were not detectably different from those of the law students who role-played third parties in the main portion of the study.

Some Determinants of Preference for Modes of Conflict Resolution

This experimental study manipulated presence or absence of temporal urgency, presence or absence of a judgmental standard, and the correspondence or noncorrespondence of outcomes among disputants in a factorial design to assess their effects on preferences for five dispute-resolution procedures arranged along a continuum of decreasing third-party intervention: autocratic decision-making, arbitration, a moot, mediation, and bargaining. Arbitration was the most generally preferred means of settlement, followed in order by the moot, mediation, autocratic, and bargaining procedures. The independent variables modified these preferences, however, such that procedures with a high degree of third-party intervention were preferred more when there was temporal urgency, outcome noncorrespondence, and a standard. Interactions revealed that correspondence affected preferences only when there was no temporal urgency, and presence-absence of a standard affected preferences only when there was temporal urgency and outcome correspondence.

Judicial use of social science research

American courts use social science research in three distinct ways: to make law, to determine facts, and to provide context. In this article, we review and critique the approaches that courts have traditionally taken to dealing with each form of social research. We also summarize and integrate a body of work offering a different perspective that treats law-making research associal authority, fact-finding research associal fact, and context-providing research associal framework. We end by proposing a coherent sequence of steps that courts should take when confronted with an empirical question about human behavior.

Theory Testing, Theory Development, and Laboratory Research on Legal Issues*

ConclusionsWe have outlined here a proposed approach to research on legal issues involving theory testing via laboratory research, then theory development to account for the failure of predictions, then new research to test the new or revised theory. It is our belief that such an approach would supply much that is lacking in the “raw empiricist” research style that is too often seen in legal studies. By supplying more accurate, well-tested theories of legal behavior, this approach can contribute to the engineering of more effective, more efficient, and fairer legal procedures.In closing, we would emphasize again that we are not calling for an end to nonlaboratory, in situ evaluation studies or to close simulations of legal settings and populations. Indeed, we view these methods as essential to relate specific innovations to theoretically generated criteria. We believe, however, that theory testing in the laboratory is also essential to scientifically assisted legal progress and innovation.

Twenty-Five Years of Social Science in Law

In this essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed—sometimes radically—are the substantive legal questions on which social science has been brought to bear.

The ASA’s Missed Opportunity to Promote Sound Science in Court

The American Sociological Association (ASA) filed an amicus brief in Wal-Mart v. Dukes in which the ASA defended the testimony of the plaintiffs’ sociological expert. Unfortunately, the ASA’s portrayal and defense of the method and opinions of this expert do not match the actual method used, and opinions offered, by the expert in the Wal-Mart case. The authors demonstrate that none of the ASA’s defenses of the expert’s method has merit and that the expert violated basic methodological rules set out by the ASA’s own sources. The opinions to which the expert testified, therefore, lacked a scientific foundation.

Case-Specific Sociological Inference

This essay responds to comments on our earlier paper discussing the American Sociological Association’s amicus brief in the Wal-Mart v. Dukes case. We identify areas of agreement and disagreement with the commentators and close with proposed meta-norms that should govern experts who seek to apply social science research to the facts of a particular case.